Executive Summary
The UK Supreme Court recently confirmed in Bloomberg LP (Appellant) v ZXC (Respondent) [2022] UKSC 5 that in the UK a person under criminal investigation has a reasonable expectation of privacy prior to being charged.
Background
The claimant, an individual anonymised as ZXC, had been under criminal investigation by UK law enforcement. Bloomberg had obtained information from a confidential Letter of Request sent by the UK to a foreign state and reported on the investigation, including on the identity of the claimant. The claimant brought a claim for misuse of private information against Bloomberg and sought damages and injunctive relief. In particular, the claimant asserted privacy over the details of the investigation, including the fact that it was alleged that he had committed specific criminal offences.
In order to bring his civil claim for misuse of private information the claimant needed to establish that he had a reasonable expectation of privacy in relation to the details of criminal investigation. It was this question that ultimately went to the Supreme Court.
Decision
The Supreme Court upheld the decisions of the lower courts and concluded that the claimant had a reasonable expectation of privacy in respect of the investigation.
It was common ground that once someone is charged with a criminal offence, there can be no reasonable expectation of privacy. The Court reviewed a significant number of relevant cases and found that pre-charge “the legitimate starting point” is that information about criminal investigations into a person is private.
The question of reasonable expectation of privacy is determined by reference to non-exhaustive Murray factors (Murray v Express Newspapers plc [2008] EWCA Civ 446). The Supreme Court highlighted that the significance of individual factors varies in each case and gave particular weight to the effect on the claimant.
At the pre-charge stage the reporting would lead to risk of unfair damage to reputation and other serious damage to a person’s life, and therefore, was precluded by the claimant’s reasonable expectation of privacy. The Court dismissed Bloomberg’s argument that the public should be taken to understand the difference between allegation and proof as the presumption of innocence is a legal presumption that does not reflect the reality of the article’s potential effect on the claimant.
The fact that the Letter of Request, which was a source of the article, was expressly confidential was a relevant factor in determining reasonable expectation of privacy since confidentiality and privacy often overlap even if confidentiality does not in itself render information private.
Discussion
The decision of the Supreme Court has confirmed the approaches of the lower courts in several cases and the widespread practice of UK law enforcement not to name suspects prior to charge unless there is good reason.
The Supreme Court’s decision will not provide persons under investigation with a guarantee of privacy since the right to privacy in a criminal investigation is only the “starting point” and must be balanced against others’ right to free expression.
The authors would like to thank Polina Maloshchinskaia for her assistance with this blog post.